It deals with a situation where a part of the law or statue is unconstitutional or is violative of the Fundamental Rights then that part of the law or statute is declared to be void by the courts while the other part is declared to be valid. In layman’s language, the doctrine of severability removes the void part of the statue from the valid part. Once the void part is removed, the remaining statute is enforced. It applies to both pre-constitutional laws and post-constitutional laws.
There are two main factors that courts apply while applying this doctrine:
- Legislative Intent
- Public Interes
Application of the Doctrine in Case Law
The Hon’ble Supreme Court in the case of AK Gopalan vs. State of Madras, removed section 14 of Preventive detention and held the other provisions of the act to be valid.
The Hon’ble Supreme Court in the case of D.S. Nakara vs. Union of India, applied the doctrine of severability and held the remaining provisions to be valid.
The Hon’ble Supreme Court in the case of R.M.D.C vs. Union of India, laid down rules for applying severability. The rules are:
- The key factor is legislature’s intent. The test is whether the legislature would have enacted the valid part if it had known beforehand that the rest of the part was invalid.
- If the invalid part cannot be separated from the valid part, then the whole statute needs to be declared as void.
- If after removing the invalid part it seems to the court that the act has been altered excessively then the court may struck down the whole act.
- In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of legislation, its object, the title and preamble to it.
This doctrine is derived from Article 13 of the Constitution and provides that where only a part of the law is found to be inconsistent or is found that the law contravenes fundamental rights then that part of the law shall be declared as void under article 13 and not the entire statute. The courts apply this doctrine to separate the valid portion of the law from the invalid portion.
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Written By– Palak Bhuwalka
Edited By– Vishakha Khatri
